People v Smith
Annotate this CaseDecided on August 2, 2013
Supreme Court, Kings County
The People of the State of New York
against
Montinay Smith, DEFENDANT.
6102/12
Defendant Montinay Smith by:
Robert DiDio & Associates, Kew Gardens, NY
Robert DiDio, Esq. at the Hearing
Danielle Muscatello, Esq. on the Motion to Reargue
The Office of Charles J. Hynes, District Attorney for Kings County by:
ADA Samuel DePaola
Joel M. Goldberg, J.
Upon consideration of the papers submitted by the defendant, dated July 22, 2013, in support of reargument of this Court's oral decision of June 26, 2013 which denied after a hearing the defendant's motion to suppress physical evidence, and the People's statement to chambers by an Assistant District Attorney that the People will rely on the record, this Court adheres to its decision denying the motion to suppress.
The findings of fact and conclusions of law underlying the Court's decision were placed on the record at 51-54. The defendant argued at the hearing that the manner in which the police stopped the defendant's Nissan Altima, plate number FPN 1977, was overly aggressive in that the police vehicle pulled in front of the Altima cutting it off, because at that time the police had allegedly observed only two traffic infractions (excessively tinted windows and failure to come to a complete stop at a Stop sign). The defendant further argued that the anonymous 911 call stating that a man in that vehicle had a gun was not sufficient to justify a stop of the vehicle any more aggressively than what would be permitted in the absence of this anonymously provided information. [*2]
At the hearing, defense counsel requested and was given the opportunity to submit further case law and argument pertaining to any limits of the authority of the police to cut off with their police vehicle a motorist who has been observed committing only traffic infractions. Although the defense has submitted case law concerning how the police may question motorists stopped for only traffic infractions, the defense has not submitted any case law limiting the means or methods by which the police may direct or cause the motorist who has committed traffic infractions to stop driving so that the police may then make inquiry of the motorist.
While use by the police of lights, sirens, and loudspeakers are all common methods of causing a motorist to "pull over," there appears to be no legal prohibition on the police, who otherwise have a right to stop a motor vehicle, effecting that stop by cutting off the motorist.
Once the police have the right to stop a motorist, as they did in this case, there is no requirement that the police first attempt to do so by escalating methods beginning first with lights and then sirens and then loudspeakers, and only after these methods fail may the motorist be cut off. Indeed, the police use of lights and a loudspeaker to pull a car over also constitutes a seizure. People v. May, 81 NY2d 725 (1992). The defendant has failed to cite any authority holding that some vehicle "seizures" may be lawful and other "seizures" unlawful depending on how the vehicle was brought to a stop.
Indeed, in this case where the police had information — albeit anonymous — that the occupant of the Altima had a gun, stopping the Altima — which the police had a right to do based on the observed traffic infractions — by cutting it off was a reasonable measure designed to address the possibility that the driver actually had a gun and would attempt to drive off at high speed in order to avoid being arrested if the police first attempted to stop the vehicle less aggressively.
The numerous cases cited by the defense pertaining to unlawful vehicle stops that do not involve vehicles actually observed to have committed traffic infractions are of scant relevance. These cases are not relevant, because it is the traffic infraction itself that provides the right to stop the vehicle as opposed to a mere "investigative stop" which constitutes an unlawful seizure. People v. Spencer, 84 NY2d 749 (1995); People v. Sobotoker, 43 NY2d 559 (1978); People v. Ingle, 36 NY2d 413 (1975). The defense assertion that a motor vehicle may be stopped and "seized" only pursuant to "routine traffic checks" or upon "at least a reasonable suspicion that the driver or an occupant of the vehicle has committed, is committing, or [is] about to commit a crime" is not accurate. A vehicle also may be stopped, i.e. seized, if it is observed to have committed a traffic infraction. Ingle, 36 NY2d at 420. The defense citation to People v. Harrison, 57 NY2d 470 (1982), for the above-quoted proposition misses the mark, because that case involved the police approaching a parked car to question its occupants and ordering them to remain in the car and not a vehicle stop.
As noted in this Court's decision, after effecting the vehicle stop, the police [*3]approached the Altima and observed what appeared to be a gun before doing anything that would be inconsistent with what the police would be authorized to do after stopping a vehicle for a traffic infraction. For example, the police did not intrusively question the vehicle's occupants (see People v. Garcia, 20 NY3d 317 [2012]), or engage in any search until the gun was observed in plain view (see People v. Marsh, 20 NY2d 98 [1967]). Once the police observed what was reasonably perceived to be a gun in the defendant's possession, the subsequent police actions were also appropriate.
Further, although not mentioned by the Court in its original decision, the defendant has failed to establish that the allegedly "overly aggressive stop" was the cause of the police finding the gun. Having been stopped, whether overly aggressively or not, it was the defendant's own actions in attempting to conceal the gun that permitted the police to observe it. Cutting off the defendant's vehicle may have thwarted an attempt to escape and perhaps startled the defendant, but once the defendant's vehicle was stopped, the situation was the same as if the defendant had, instead, voluntarily pulled over in response to police lights, sirens and/or loudspeakers. The evidence supports a conclusion that the defendant's revelation of the gun was not a "spontaneous reaction" to being aggressively cut off by the police, but, rather, a calculated act to hide the gun. See People v. Boodle, 47 NY2d 398 (1979); People v. Cadle, 71 AD3d 689 (2d Dept. 2010). Therefore, it appears that even if the police acted unlawfully in cutting off the defendant's vehicle rather than causing it to stop by less aggressive means, the discovery of the gun is sufficiently attenuated from the manner in which the car was stopped.
Accordingly, this Court adheres to its decision denying the motion to suppress.
SO ORDERED
JOEL M. GOLDBERG
JUDGE
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